WASHINGTON – The U.S. Supreme Court will hear lawyers Wednesday fighting desperately over how a Missouri playground gets paid for. That's because the ruling could affect people of faith nationwide.
It's why the case of Trinity Lutheran Church of Columbia, Inc. vs. Comer is being labeled the biggest religious rights case the high court is taking up this session.
Missouri was giving grants to non-profit organizations that have playgrounds. Those grants would help the non-profits purchase and install a rubberized surface made of recycled tires on their playgrounds.
"So when kids fall, they don't get hurt. It kind of bounces up a little," explained David Cortman, an attorney with Alliance Defending Freedom (ADF), a group that takes on cases to protect religious rights.
Kicked Out for Being a Church?
He told CBN News that Trinity Lutheran Church applied to get its preschool's playground covered along with dozens of other non-profits. Missouri bureaucrats judged them on a number of criteria.
"And the church scored among the top five and would have been given the grant," Cortman said. "But once they read the application and found out this preschool was run by Trinity Lutheran, they said, 'Whoa, separation of church and state. Now, even though you qualified better than almost any other applicant, we're going to kick you out of the program simply because you're run by a religious organization.' "
So Cortman sees a real danger here of government discriminating against religious people and groups.
"Simply because you're operated by a religious organization or you're a group of religious people, does that mean that because of the so-called separation of church and state, or the Establishment Clause, that the government has a right to treat you worse?" Cortman asked.
The case is so important that lawyers for ADF and the American Civil Liberties Union (ACLU) argued it at a mock hearing before mock Supreme Court justices held at Washington, D.C.'s Newseum.
ACLU: Missouri Had to Deny the Funding
There, Daniel Mach of the ACLU argued that Missouri's own law on church/state matters forced it to decide this way.
"The state was not only allowed to deny the funding here, but required to deny the funding," Mach stated, adding, "The Supreme Court has consistently warned against the dangers of direct cash grants from taxpayers to houses of worship."
But Cortman, who's arguing for Trinity Lutheran before the high court, said the state has nothing to fear here.
"There's no religion going on the playground. It's just purely a surface for the kids to fall," he said.
At the mock hearing, however, the ACLU's Mach warned, "The church refused to certify that it wouldn't use the playground for religious activities or purposes. And it has said that religion is infused in everything the school does, that the learning center – the school – is a ministry of the church that incorporates daily religion into its daycare program."
"It teaches a Christian worldview, not only to children of members of the church, but to non-member residents," he continued. "And it says that it uses the school to bring the Gospel message to non-members."
'As Far Away from Religion as You Can Get'
Another ADF lawyer, Erik Stanley, pooh-poohed that point at the mock hearing, stating, "There is nothing religious about a playground."
"We're talking about a rubber surface on a playground that is intended to protect the health and safety and well-being of children," he said. "This is about as far away from religion as you can get. The playground surface itself does nothing to advance religion. It doesn't make religion any easier."
Mach, who's director of the ACLU Program on Freedom of Religion & Belief, shot back, "Obviously there's nothing inherently religious about tire material. But there's nothing inherently religious about a piece of wood. But that piece of wood could be used to build a chapel."
Cortman told CBN News the church and parents have told him they're fighting all the way to the Supreme Court – not because of the grant-money, but for the principle involved.
He explained, "They open the playground after school hours to the entire community, even if you don't go to school there."
"So they're saying, 'Look, this is the principle we're concerned about: Why should any religious group be treated worse, whether it's on playground surface or some other government benefit simply because they're operated by a religious organization?'" he said.
Bigger Dangers Ahead?
If the high court rules for Missouri and against Trinity Lutheran, religious rights advocates warn it could lead to much bigger dangers ahead.
"So do we say now: 'Well, we no longer want to send the police or fire department out if the school is run by a religious organization?' " Cortman wondered.
"Or what if we have a public benefit where there's old buildings that have lead in the paint or asbestos in the ceiling?" he continued. "And we say, 'The government's going to help remove those toxic materials, but if it's a preschool run by a religious organization, you can't participate. We're just going to let your students get exposed to that toxic material.' "
Ironically, Missouri is refusing to grant the church money from a tax fund that church members themselves paid into.
"They get these funds from a tax on new tires," Cortman explained. "So the people who go to the church and the church themselves, if they buy new tires for the van or for their own cars, they pitch into this fund."
So that's one more area of unfairness Cortman sees here.
As he put it, "Why does the religious status matter to whether you get to participate along with anybody else in a government benefit? If I said, 'Everyone gets Social Security benefits, but nobody who's religious,' everybody would say, 'Of course you shouldn't be able to do that.' "
Gorsuch's First Such Case on the High Court
There's a good chance the Supreme Court will have a decisive impact on this religious controversy because its ranks are back up to nine members, meaning no tie-vote when it rules.
That ninth justice is Neil Gorsuch, and Trinity Lutheran will be the first religious rights case he hears as the newest justice.